REDLASER SDK LICENSE AGREEMENT

Last updated on February 23, 2012

REDLASER SDK LICENSE AGREEMENT

Last updated: November 21, 2012

THIS REDLASER SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT (the “Agreement”) is between you (“You” or “Your”) and (a) if You reside in the United States of America, eBay Inc., a Delaware corporation, located at 2145 Hamilton Avenue, San Jose, California 95125, U.S.A.; (b) if You reside within the European Union, eBay Europe S.ä.r.l., 22-24 Boulevard Royal, L-2449 Luxembourg; (c) if You reside in any other country (other than the United States or India), eBay International AG, Helvetiastrasse 15/17, 3005, Bern, Switzerland; or (d) if You reside in India, eBay India Private Limited, a company incorporated under the Companies Act, 1956, with a registered office at 101-B, Akruti Corporate Park, Kanjurmarg (West), Mumbai 400079, Maharashtra, India (each, “eBay”). This Agreement is effective on December 21, 2012 for current licensees and upon acceptance for new licensees (the “Effective Date”). You accept this Agreement by clicking the “I Agree” button or by using the RedLaser SDK.

RECITALS

  1. WHEREAS, eBay is the owner of certain bar code scanning technology, currently referred to as “RedLaser,” and licenses such technology for use in various software applications; and
  2. WHEREAS, the parties mutually desire to enter into a license agreement to allow You to incorporate eBay’s RedLaser bar code scanning technology into Your own technology and to distribute the combined technology.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

AGREEMENT

1.              Definitions.

“Application” means the software application that You develop, own or operate to interact with the RedLaser Software (defined below) that adds value to the RedLaser Software (as defined below) and does not compete with any eBay product or service. The Application includes bug fixes, updates, upgrades, modifications, enhancements, additions to, revisions, new releases and new versions of such software application.

“Minimum User Terms” means the requirements set forth in Section 2.2 below.

New Downloads” means first-time downloads by Your User, such as downloads with the product type identifier prefix of “1” in iTunes Connect Sales Reports, or equivalent metrics in other app stores.

Personal Information” is any information pertaining to a directly or indirectly identifiable individual. It may include information that You collect directly from Users in connection with the Application.

“RedLaser Authentication Files” means all files downloaded from the RedLaser website for the purpose of authentication.

“RedLaser SDK” (Software Development Kit) means the RedLaser Software and all other tools and information made available to You by eBay under the name “RedLaser.”

RedLaser Software” means the components of the RedLaser SDK that are identified in the RedLaser SDK as “redistributable.”

“Security Breach” means a breach of security of Your facility, systems or site where RedLaser Authentication Files have been acquired by an unauthorized person.

“Site” means any domestic or international website owned, operated, controlled or utilized by eBay or its subsidiaries, in connection with the RedLaser SDK.

Update Downloads” means update downloads by Your Users, such as downloads with the product type identifier prefix of “7” in iTunes Connect Sales Reports, or equivalent metrics in other app stores.

User Agreement” means a binding and enforceable agreement between You and Your Users that includes the Minimum User Terms.

Your Users” means end-users of the Application and Your service providers.

2.              License Terms.

2.1           Software Licenses.  Subject to the terms and conditions in this Agreement (including but not limited to the terms set out and referred to in Exhibit B (Open Source Attribution Notice)), eBay grants You the following software licenses during the Term (as defined in Section 10.1 below):

(a)            Development. eBay grants You a limited, revocable, worldwide, non-assignable and non-exclusive license to use the RedLaser SDK solely to develop the Application. You may not sublicense this right to any third party.

(b)            Distribution to Your Users. You may reproduce and distribute the Application You have developed to Your Users, subject to and in accordance with the Minimum User Terms.

The foregoing licenses are granted only for the purposes permitted by this Agreement and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). In exercising these license rights, You must not remove any proprietary marks or notices contained in the RedLaser Software. Third parties may assist You in exercising these license rights provided that such parties are bound by written obligations of confidentiality at least as stringent as those in this Agreement, and provided further, that You are responsible for such third parties’ compliance with this Agreement.

Your license rights to the RedLaser SDK do not include any license, right, power or authority to subject the RedLaser SDK, in whole or in part, to any terms of an Excluded License.  “Excluded License” means any license that requires as a condition of use (1) that RedLaser SDK code be modified and/or distributed pursuant to the Excluded License, or (2) that such RedLaser SDK code or other source code combined and/or distributed with such RedLaser SDK code be (a) disclosed or distributed in source code form; (b) licensed for the purposes of making derivative works; or (c) redistributed at no charge.

2.2           Minimum User Terms.  You may sublicense the RedLaser Software to Your Users only as stated in Section 2.1(b) above and only subject to a User Agreement which ensures that:

(a)            Use of the Application is personal, nonexclusive, non-sublicensable, and consistent with the confidentiality obligations under this Agreement;

(b)            The Application may not be copied, except for limited backup purposes where appropriate;

(c)             Your Users may not create any derivative work of the Application; or decompile, reverse engineer, or otherwise attempt to derive source code, underlying ideas, algorithms, structure, or organization of the Application, except to the extent required by local law to obtain interoperability with independently created computer programs or as required by other compulsory local law;

(d)            Any warranty, indemnification or liability offered to Your User comes solely from You, not from eBay; and

(e)            eBay’s intellectual property attributions in Exhibits A and B and other notices and legends are included in the User Agreement.

2.3           Ownership and Further License Grants. As between eBay and You, eBay retains all rights, title and interest in and to all intellectual property rights embodied in or associated with the RedLaser SDK, RedLaser Authentication Files, the Site, any and all eBay services, and any content eBay created or derived therefrom. eBay does not grant any implied licenses under this Agreement, and any rights not expressly granted to You hereunder are reserved by eBay or its suppliers or licensors.  You will not take any action inconsistent with eBay’s ownership of the RedLaser SDK, the Site, and/or the RedLaser Authentication Files.

Where the RedLaser SDK gives rise to new inventions or derivative works that are protectable, when the RedLaser SDK is used to create enhancements or the RedLaser SDK is the basis for new technology, You grant eBay a fully paid-up, worldwide, perpetual, irrevocable, transferable and sub-licensable (through multiple tiers) right to exercise any and all copyright, trademark, patent, publicity, database rights and other IP rights in any media known now or in the future. For clarity, neither party waives any ownership rights it may have to new inventions or derivative works based on, arising from or otherwise related to the RedLaser SDK.

2.4           Competitive or Similar Materials. In no event will eBay be precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for third parties, as well as marketing and distributing, materials (including but not limited to applications, products or services) which are competitive with the Application or other products or services provided by You, irrespective of their similarity to the Application, current products or services, or products or services that You may develop.

2.5           eBay Logo License. eBay grants You a non-exclusive, limited, revocable license during the Term to display within the Application the logo included in Exhibit A (Logo, Attribution and Logo Usage Requirements) to this Agreement (the “Logo”). The Logo Usage Requirements may be changed from time to time in accordance with this Agreement. eBay may update the Logo from time to time, and You must display the most current Logo.  You must display the Logo in accordance with the Logo Usage Requirements. eBay has final approval over the placement of a Logo on the Application and may terminate this license at any time for any reason. You must remove the Logo immediately upon eBay’s request.

2.6           eBay Use of Application User Data. You agree that eBay may collect timestamps, IP addresses, geo-localization data and, as permitted by applicable third party distributors, unique device identifiers associated with the usage of the RedLaser functionality. You also agree that eBay may retain and use: (a) asynchronously-logged barcode information (numeric representation and associated type, including, without limitation, UPC-A/EAN-13) associated with an Application ID and (b) anonymous random session IDs generated with each Application launch for the purposes of, without limitation, building a database of barcodes and ensuring proper functioning of the scanner technology. eBay will not publicly disclose or share with third parties (i.e., parties other than eBay or its Affiliates (as defined below)) the foregoing information about You or the Application level unless eBay has consent from You to do so, concludes that it is required by law, or has a good faith belief that access, preservation, or disclosure of such information is reasonably necessary to protect the rights, property, or safety of eBay, its users or the public. For purposes of this Section 2.6, an “Affiliate” means any entity directly or indirectly controlling or controlled by or in common control with eBay, where “control” is defined as the ownership of at least 50% of the equity or beneficial interests of such entity or the right to vote for or appoint a majority of the board of directors or other governing body of such entity, and any other entity with respect to which eBay or any of such Affiliates has management or operational responsibility (even though eBay or such Affiliate may own less than 50% of the equity of such entity).

2.7           Access Keys. All RedLaser Authentication Files, usernames, and passwords are the property of eBay, and may be revoked if You share them with any third party (other than as allowed under this Agreement), if they are compromised, if You violate any term of this Agreement, or upon any termination of this Agreement.

2.8           eBay Support for RedLaser. Technical support f  or the RedLaser SDK is available to You by email by contacting support@redlaser.com.

2.9           Modification of the RedLaser SDK. eBay may modify the RedLaser Software or the RedLaser SDK tools at any time with or without notice to You. Any changes You make to the Application as a result will be at Your own cost.

3.              Your Obligations.

3.1           Compliance. You will ensure that the Application and Your use of the RedLaser SDK complies at all times with the requirements set forth herein, any applicable third-party terms or requirements, any applicable laws and regulations (including, but not limited to, any criminal, civil or statutory laws, privacy laws and consent requirements).

3.2           Personal Information. You may receive Personal Information about Your Users. All collection and use of Personal Information will be only as authorized by Your Users and will comply with Your privacy policy and practices. Your privacy policy and practices will comply with applicable laws. If you use the RedLaser SDK to develop the Application for general public users, You will protect the privacy and legal rights of Your Users. If Your Users provide you with user names, passwords, or other login information or personal information, You must make Your Users aware that the information will be available to the Application, and You must provide a legally adequate privacy notice and protection for Your Users. If the Application stores personal or sensitive information provided by Your Users, it must do so securely. You shall ensure that You have obtained Your User’s consent to share scan data that includes the transfer of Personal Information with eBay and that such transfer complies with applicable laws. Also, Your privacy policy must inform Your Users that their data (including, without limitation, UDID, geo-localization information and related information) may be processed by Your service providers and that by using the Application, they consent to such processing by providers wherever they may have facilities (including, but not limited to, the United States).

3.3           Prohibited Activities. You will not, nor will You facilitate or enable others to:

(a)            engage in any activity with the RedLaser SDK, including but not limited to the development or distribution of an Application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of eBay or any third party;

(b)            distribute, publish, or allow access or linking to the RedLaser Software from any location or source other than the Application;

(c)             modify, decompile, reverse engineer or otherwise alter the RedLaser SDK or any part of it; or

(d)            have the Application or Your use of the RedLaser SDK: (i) be false, inaccurate or misleading; (ii) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights; (iii) be offensive, defamatory, trade libelous, threatening or harassing; (iv) contain any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data; or (v) create any liability for eBay or cause eBay to lose (in whole or in part) the services of its ISPs or other suppliers.

3.4           Third Party Content. If You or the Application accesses or uses any third party content or RedLaser Authentication Files, You will at all times comply with the terms applicable to such access or use, if any.

3.5           Your Content. You are solely responsible for (and eBay has no responsibility to you or to any third party for) any data, content, or resources that You create, transmit or display through the Application, and for the consequences of Your actions (including any loss or damage which eBay may suffer) by doing so.

3.6           Breach of Your Obligations. You are solely responsible for (and eBay has no responsibility to You or to any third party for) any breach of Your obligations under this Agreement, any applicable third-party contract or terms of service or terms of use, or any applicable law or regulation, and for the consequences (including any loss or damage which eBay or any third party may suffer) of any such breach.

3.7           Contractors and Service Providers. You may work with contractors or service providers as necessary to facilitate Your performance under this Agreement only if You subject Your contractors or service providers to all of the conditions and restrictions of this Agreement. You acknowledge and agree that any act or omission by Your contractors or service providers amounting to a breach of this Agreement will be deemed a breach by You. eBay will have the right, in its sole discretion, to directly enforce any term of this Agreement against such third parties, including termination, and You will include language in Your agreement with such third parties to ensure that eBay can do so.

3.8           Third Parties. You represent and warrant that You have the authority to bind the party using the RedLaser SDK and You and that party are collectively referred to as “You” or “Your” in this Agreement. If You are agreeing to be bound by this Agreement on behalf of Your employer or other entity, You represent and warrant that You have full legal authority to bind Your employer or such entity to this Agreement. If You do not have the requisite authority, You may not accept this Agreement or use the RedLaser SDK on behalf of Your employer or other entity. You may not use the RedLaser SDK and may not accept this Agreement if You are a person barred from receiving the RedLaser SDK under the laws of the United States or other countries, including the country in which You are resident or from which You use the RedLaser SDK.

3.9           Customer Support. You are solely responsible for providing any customer support to Your Users. eBay has no responsibility for providing any support for any Application, and will refer all Application user questions about the Application to You.

4.              Fees, Payments & Reporting.

4.1           Advance and License Fees.

(a)            Upon acceptance of this Agreement, You will pay eBay the listed amounts for the license package selected by You in the License Sign-Up/Registration process (current prices are listed at http://redlaser.com/developers/pricing/).

(b)            If the Application is available to the public, You will provide eBay with a regular and accurate accounting (“Reports”) of sales, updates and all other distribution of the Application starting from the date it becomes available, monthly through the last day of each calendar month, based on data such as iTunes Connect Trends and Sales Reports. You agree to email Reports to eBay at billing@redlaser.com by the end of the month following the period covered by such Report, indicating in the first Report the date on which the Application first implemented the RedLaser Software. After receipt of each Report, eBay will invoice You via email.

(c)             If the Application is available only to employees, contractors and/or service providers internal to your enterprise, eBay will track device-level usage of the Application, based on the user application data specified in Section 2.6 of this Agreement. You agree that this user information will supersede other tracking methods, and understand that it may not match tracking results from other sources. eBay will invoice You via email based on this information.

(d)            All payments must be made in the form of a check or wire-transfer to eBay. Alternatively, you may use the following email address to send us Your payment using PayPal: billing@redlaser.com. Except for any advance payment, Your payment must be postmarked or electronically transferred within thirty (30) days of receipt of an invoice from eBay. Late payments will be subject to a late fee of 1.5% per month or the maximum amount allowed under applicable law, whichever is less.

4.2           New Feature Fees. If eBay introduces a new RedLaser SDK service or feature, the fees for that service or feature, if any, will be effective at the launch of the service or feature. Such usage fees, if any, will be invoiced on a monthly basis for activity from the previous calendar month. You will be responsible for all other fees associated with Your use of any RedLaser Site or service.

4.3           Additional Payment Terms. eBay may terminate this Agreement upon notice to You if You fail to pay Your invoices when due. All payments are non-refundable, whether or not You use the service purchased. All fees charged to You under this Agreement will exclude, and You will pay, any taxes associated with such fees, the Application, or this Agreement.

4.4           Right to Monitor. eBay may monitor the Application or activities relating to Your use of the RedLaser SDK. You will not seek to block or otherwise interfere with such monitoring, and eBay may use technical means to overcome any methods You may use to block or interfere with such monitoring. In the event that such monitoring reveals that You have been misrepresenting facts related to the installation or use of the Application, You shall immediately pay any amounts that such monitoring reveals are due.

5.              Disclaimer of Warranties.

SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND EBAY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

EXCEPT AS EXPRESSLY STATED HEREIN, EBAY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALSO, YOU ACKNOWLEDGE THAT THE USE OF MOBILE TECHNOLOGIES IS A HIGHLY LITIGIOUS FIELD AND THAT THIRD PARTIES MAY CLAIM THAT THE REDLASER SDK INFRINGES THEIR INTELLECTUAL PROPERTY RIGHTS. EBAY DOES NOT REPRESENT OR WARRANT THAT ANY EBAY SITE, THE REDLASER SDK OR ANY PART OF IT WILL OPERATE SECURELY OR WITHOUT INTERRUPTION. ALL LOGOS, SOFTWARE AND SERVICES PROVIDED BY EBAY HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.

6.              LIMITATION OF LIABILITY.

EBAY WILL HAVE NO CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT FOR CLAIMS UNDER SECTION 7 [DEFENSE OF CLAIMS], EBAY’S DIRECT LIABILITY WILL BE LIMITED TO AMOUNTS PAID OR PAYABLE TO EBAY BY YOU FOR ACCESS TO OR USE OF THE REDLASER SDK IN THE MONTH PRECEDING THE CLAIM. IN THE EVENT THAT THE FORMER LIMITATION OF LIABILITY IS HELD UNENFORCEABLE BY A COMPETENT COURT, EBAY’S AGGREGATE LIABILITY IS IN ANY CASE LIMITED TO $5,000 (FIVE THOUSAND US DOLLARS) PER EVENT, A SERIES OF EVENTS BEING CONSIDERED AS ONE SINGLE EVENT. the foregoing represents a fair allocation of the risk hereunder.

7.              Defense of Claims.

7.1           By You. You will defend eBay against any and all third party claims that may arise from (a) an alleged or actual breach of any representation and warranty set forth in this Agreement by You; or (b) Your use of the RedLaser SDK or the Logo that is not permitted under this Agreement, and pay all court or jury awarded damages and costs against eBay as a result of such claim, subject to Section 7.4 below.

7.2           By eBay. eBay will defend You against any and all third party claims that may arise from (a) an alleged or actual breach of any representation or warranty set forth in this Agreement by eBay; or (b) the RedLaser SDK’s direct infringement upon any third party proprietary rights, including but not limited to patents, trademarks, copyrights or trade secrets, and pay all court or jury awarded damages and costs against You as a result of such claim, subject to Section 7.4 below. eBay’s obligations in this Section 7.2 will not apply to any claim caused by or resulting from: (i) Your combination or use of the RedLaser SDK with software, services or products developed by anyone other than eBay, if the claim would have been avoided by the non-combined or independent use of the RedLaser SDK; (ii) modification of the RedLaser SDK by anyone other than eBay, if the claim would have been avoided by use of the unmodified RedLaser SDK; (iii) use of other than the most current version of the RedLaser SDK, if the claim would have been avoided by the use of the most current version; (iv) Your continued use of the RedLaser SDK after being notified of an alleged infringement or after being provided modifications to avoid infringement; or (v) Your use of the RedLaser SDK in a manner not in accordance with this Agreement. The foregoing obligations do not extend to any allegations of indirect infringement or willful infringement.

7.3           Conditions Precedent. The obligations hereunder are conditioned upon (a) prompt written notice by the defended party to the defending party of a claim, provided, however, that failure to give such notice shall not relieve the defending party of any liability hereunder except to the extent that the defending party has suffered actual material prejudice by such failure; (b) reasonable information, assistance and cooperation by the defended party, at the defending party’s expense, in defending or responding to a claim as the defending party may request; and (c) complete control and sole authority by the defending party over the defense and settlement of a claim. Settlement of any claim will be subject to the defended party’s approval only where the settlement or compromise imposes a material financial burden or material encumbrance upon the operation or conduct of the defended party’s business, such approval not to be unreasonably withheld or delayed.

7.4           LIMITATION ON LIABILITY SPECIFIC TO SECTION 7 [DEFENSE OF cLAIMS]. In no event will THE LIABILITY OF ANY PARTY under section 7 of this agreement (defense of claims) exceed three times the amount paid by you under this agreement during the twelve (12) months preceding the date on which the third-party served the DEFENDED party or notified the DEFENDED party of its claim, whichever is earlier. THE ABOVE LIMITATION OF EACH PARTY’S LIABILITY is CUMULATIVE, WITH ALL DEFENSE OF CLAIMS AND PAYMENTS FOR DAMAGES AND COSTS IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE APPLICABLE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.

8.              Confidentiality.

8.1           Confidential Information Defined. “Confidential Information” is defined as any confidential or proprietary information of a party which is disclosed to the other party in a writing marked confidential or, if disclosed orally, is identified as confidential at the time of disclosure and is subsequently reduced to a writing marked confidential and delivered to the other party within ten (10) days of disclosure. The terms of this Agreement, the RedLaser SDK and the RedLaser Authentication Files, if you receive any, shall be deemed eBay’s Confidential Information even if not marked “confidential.”

8.2           Mutual Obligations. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as required to perform under this Agreement. Such restrictions shall not apply to Confidential Information which (a) is already known by the recipient, (b) becomes publicly known through no act or fault of the recipient, (c) is received by the recipient from a third party without a restriction known by the recipient on disclosure or use, or (d) is independently developed by the recipient without reference to the Confidential Information. The restriction on disclosure shall not apply to Confidential Information which is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, provided that the recipient shall first notify the disclosing party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order. The parties’ respective obligations accrued hereunder during the Term shall survive the expiration or termination of this Agreement for a period of three (3) years.

8.3           Return of Confidential Information upon Termination. Upon termination of this Agreement or upon request of the disclosing party, whichever is earlier, the receiving party shall destroy or return to the disclosing party all Confidential Information of the disclosing party and all documents or media containing any such Confidential Information and any and all copies or extracts thereof, provided, however, that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.

8.4           Confidential Treatment. Without limiting the foregoing, and subject to compliance with applicable law, each party agrees to notify the other in the event any element of this Agreement may need to be disclosed pursuant to any regulatory or other disclosure requirement, and to further seek confidential treatment requested by the other with respect to certain confidential elements of the Agreement and any documents related thereto (including information relating to fees, payments and integration) in any governmental or public filings. eBay may disclose Confidential Information to its contractors used by eBay in connection with, and as necessary to, providing the RedLaser SDK to its licensees and as necessary to any third party service providers used by eBay in providing the RedLaser SDK and related services. Monetary damages may not be a sufficient remedy for unauthorized use or disclosure of Confidential Information and each party will be entitled (without waiving any other rights or remedies) to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction, without obligation to post any bond.

8.5           Support Communications. When requesting and receiving technical support (which eBay is under no obligation to give) or communications from eBay, You will not provide eBay with any information, including that incorporated in your Application, that is confidential to any third party.

9.              Publicity.

You will not make any public statement regarding this Agreement, the terms of this Agreement, any aspect thereof, or the RedLaser SDK without eBay’s prior written approval, which may be withheld in eBay’s sole discretion. You permit eBay to make public statements about Your use of the RedLaser SDK. Further, eBay may include Your company name in a list of RedLaser customers, in the same manner as eBay names other RedLaser customers generally, and may use Your trade names, trademarks, service marks, logos and domain names for the purpose of advertising or publicizing Your use of the RedLaser SDK.

10.           Term and Termination.

10.1        Term. The term of this Agreement will begin on the Effective Date and will continue until terminated in accordance with this Agreement (the “Term”).

10.2        Termination. This Agreement will terminate automatically without notice if You fail to comply with any of the terms of this Agreement. You may terminate this Agreement for any reason or no reason and at any time by providing eBay thirty (30) days’ written notice (email is sufficient). EBAY RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT OR SUSPEND OR DISCONTINUE YOUR ACCESS TO THE REDLASER SDK, OR ANY PORTION OR FEATURE THEREOF, FOR ANY OR NO REASON AND AT ANY TIME WITH OR WITHOUT NOTICE TO YOU AND WITHOUT LIABILITY TO YOU.   

10.3        Effect of Termination. Upon any termination of this Agreement, Your RedLaser Authentication Files (if any) will be revoked, all licenses granted hereunder will terminate, and You will pay all outstanding fees (if any) due to eBay. You will destroy all Your intermediate copies of the RedLaser SDK within ten (10) days of termination and provide written proof of destruction to eBay upon request.

10.4        Survival. The following sections will survive any termination of this Agreement:  1 (Definitions), 2 (License Terms), 3.3 (Prohibited Activities), 4 (Fees, Payments & Reporting), 5 (Disclaimer of Warranties), 6 (Limitation of Liability), 7 (Defense of Claims), 8 (Confidentiality), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Law and Venue), and 12 (Miscellaneous).

11.           Law and Venue.

This Agreement will be construed as if both parties jointly wrote it, governed by the laws of the State of Delaware in the United States of America, except for its conflicts of laws principles, and any cause of action arising under or relating to this Agreement must be brought exclusively in a court in Santa Clara County, California, U.S.A. However, this will not affect your statutory rights if you are a consumer and the competent court determines that applicable consumer law requires application of another law (such as the law of your country of residence).

12.           Miscellaneous.

12.1        Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and any conflicting or additional terms contained in other documents or oral discussions are void.

12.2        Modification of this Agreement. eBay may amend this Agreement at any time by posting the amended terms on www.redlaser.com. eBay’s right to amend the Agreement includes the right to modify, add to or remove terms in the Agreement. Except as stated otherwise in this Agreement or elsewhere, all amended terms shall automatically be effective thirty (30) days after they are initially posted. This Agreement may not be otherwise amended except in a writing hand signed by You and eBay. For purposes of this provision, a “writing” does not include an email message and a signature does not include an electronic signature.

12.3        Notices. All notices must be sent to support@redlaser.com.

12.4        Waiver. A waiver of any default is not a waiver of any subsequent default.

12.5        Severability. Unenforceable provisions will be modified to reflect the parties’ intention, and remaining provisions of this Agreement will remain in full effect.

12.6        Assignment. You may not assign all or part of this Agreement or any rights or obligations You may have under this Agreement without the prior express written permission of eBay. Assignment of all or part of this Agreement or of any rights or obligations You may have under this Agreement without eBay’s prior express written permission will be void. eBay may assign any and all of its rights under this Agreement and delegate any and all of its duties under this Agreement to any third party without Your consent.

12.7        Independent Contractors. You and eBay are not legal partners or agents, but are independent contractors.

12.8        Corrective Action. In addition to any other available remedies, eBay may, in its sole discretion, seek specific performance, injunctive relief or attorneys’ fees. eBay reserves the right to take other corrective action as eBay sees fit in the event that eBay receives complaints from eBay users about the Application or Your actions.

12.9        Compliance with Laws. You are responsible for complying with trade regulations and both foreign and domestic laws. You represent and warrant that You are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country and You are not listed on any US Government list of prohibited or restricted parties. The RedLaser SDK and its underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo; or (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals or on the US Commerce Department’s Denied Party or Entity List. You will not export or re-export the Application to any prohibited country, person, end-user or entity specified by US Export Laws. This Agreement is not governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

 

 


Exhibit A

Logo, Attribution and Logo Usage Requirements

 

1.              Logo: Provided as part of the RedLaser SDK package.

 

2.              Attribution: Portions of this Application © 2009-2012 eBay Inc. All rights reserved. The RedLaser Logo is owned by eBay Inc. and may be registered in the United States and other countries.

 

3.              Logo Usage Requirements:

 

  • Licensee will display the Logo on the scanning overlay of its Application.

 

  • Logo Artwork. eBay will provide you with Logo artwork. When reproducing the Logo(s) you may only use the artwork provided by eBay. You may not alter the Logo as provided to you in any manner, including proportions, colors, elements, type, or any other respects. You may not animate, morph, or otherwise distort the Logo’s perspective or dimensional appearance.

 

  • Trademark Notices. All uses of the Logo(s) must include the following statement in a reasonably visible location: “The RedLaser logo is a trademark of eBay Inc.”

 

  • No Use of Identical or Similar Names; No Combination Marks. You may not use any name or trademark confusingly similar to the Logo(s) or any other eBay trademark. You may not use the Logo(s) in such proximity to any of your own trademarks or third party trademarks so as to create a combination or composite mark.

 

  • Ownership Rights & Cooperation. Nothing herein grants you any right, title, or interest in the Logo(s), or any other trademark of eBay, except the right to use the Logo(s) solely in accordance with the terms of this Agreement. The Logo(s) are the sole property of eBay, and any and all uses by you of the Logo(s), and all goodwill derived therefrom, whether or not conducted pursuant to this Agreement, inure solely to the benefit of eBay. At eBay’s request and expense, you will provide eBay with any specimens and execute all documents necessary to protect and confirm eBay’s rights to the Logo(s) including without limitation any act reasonably necessary for eBay to secure or maintain rights in and to the Logo(s).

 

  • No Registration of Mark or Objections to Validity.You will not: (a) do anything harmful, adverse, or that might bring harm to the reputation or goodwill of eBay, the eBay name or the Logo(s); (b) take any action inconsistent with eBay’s ownership of the eBay name or the Logo(s); (c) challenge, raise or cause to be raised any questions concerning eBay’s rights or interests in the eBay name or the Logo(s); or (d) attempt to register the Logo(s) or any other eBay trademark or any trademark or logo substantially similar thereto.

 

  • Notification of Adverse Use. You must promptly notify eBay in writing of any adverse use by a third party of the Logo(s) or of a mark or name confusingly similar to the Logo(s) of which you become aware and will take no action of any kind with respect thereto except with the prior written authorization of eBay. You will provide full cooperation with any legal or equitable action by eBay to protect eBay’s right, title, and interest in and to the Logo(s).

 

  • Infringement Proceedings. If a third party infringes the Logo(s), eBay has the sole right in eBay’s discretion to initiate and conduct proceedings against the infringing party, to initiate and conduct negotiations with respect thereto, including, but not limited to settlement discussions and to retain any damages recovered in such proceedings.

 

4.              Quality Control & Review Process:

 

4.1           Application Quality. You may only use the Logo(s) with the Application and other materials permitted by this Agreement and only so long as the quality of the Application and other materials meets eBay’s high standard of quality consistent with the level of quality reflected in eBay’s own services and products. For example (and without limitation), the Logo(s) may not be used on or in connection with any material that:

 

•       is pornographic, morally offensive or otherwise objectionable in light of eBay’s reputation for providing a safe online environment for trading;

 

•       libels or defames eBay or any of eBay’s partners or customers; or

 

  • violates any state, federal, or foreign law or regulation.

 

4.2           Prior Submission of Samples. If requested by eBay, you must, at least five (5) business days prior to any proposed use, submit samples of any and all materials bearing the Logo(s) to eBay for review and approval. eBay has the right to make reasonable objections to any sample within two (2) business days of eBay’s receipt thereof. In the event of an objection, you will make all eBay requested changes and will resubmit the materials to eBay for approval prior to the use of the materials. Once you have received approval for any such materials, you may use the same in subsequent materials (in connection with this Agreement) without obtaining additional prior approval.

 

4.3           Misuse. If eBay notifies you that any use of the Logo(s) by you does not meet the requirements set forth herein, then you must correct each misuse of the Logo(s) within five (5) calendar days of receiving eBay’s notice. Attempts at a cure or partial cure will not stay the running of the five day cure period unless such stay is first agreed to in writing by eBay.

 


Exhibit B

Open Source Attribution Notice

 

The RedLaser SDK uses source code originally derived from the ZXing Project as one of its barcode scanning techniques. In addition to the license terms in this Agreement, your use of the RedLaser SDK is subject to the Apache License, Version 2.0 which requires the following attribution in your Application:

 

Portions of this product Copyright 2008 ZXing Authors

 

Licensed under the Apache License, Version 2.0 (the “License”); you may not use this file except in compliance with the License. You may obtain a copy of the License at: 

 

http://www.apache.org/licenses/LICENSE-2.0

 

Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.

 

See the License for the specific language governing permissions and limitations under the License.

 

 



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